Madrasdated High Court · 2025

S.A.No.719 of 20112. Parties are indicated herein as per their litigative status and ranking before the trial Court.3. Case of the plaintiffs is that the deceased 1st plaintiff's father and the defendants are pangalis. Defendants no.1 and 2 and one T.B.Ramasami Pillai are the sons of Bala Muthu Mandiri of Thekkupattu Village, Vaniyambadi Taluk as joint family. They lived till 1968 and thereafter, they orally partitioned their joint family properties in or about 1968. The suit property and the other properties fell to the share of T.B.Ramasami Pillai. Similarly, properties were allotted to the defendants herein. During said partition, it was mutually agreed by T.B.Ramasami Pillai and the defendants have the right of way and channel right and right to go to the pumpset shed to get water for agricultural purposes. From the date of the said partition, the defendants and T.B.Ramasami Pillai are enjoying the above said rights of cart track, right to take cattles, right to take water through channel and go to the pumpset shed to take water without any hindrance.4. It is the further case of the plaintiffs that the said T.B.Ramasami Pillai executed the registered gift deed in favour of the plaintiffs on 2/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 201104.05.1977. The gift was accepted and acted upon by the plaintiffs and they are in possession and enjoyment of the suit schedule properties and enjoyed the cart track right, to take cattles, right to take water through channel, right of way and right to go to the pumpset shed. These plaintiffs enjoyed the rights which were enjoyed by the donor namely T.B.Ramasami Pillai. The gift deed also indicates about the said rights of the plaintiffs. T.B.Ramasami Pillai mortgaged the property on 20.04.1971 to one Ammakannammal of Tekkupattu Village and in the said document also mention is made about the said right of the 1st plaintiff's father. Thus, for the past 25 years, the plaintiffs' predecessor in title and thereafter the plaintiffs have been enjoying the rights of cart track and other rights as mentioned supra.5. The said cart track access in the land in S.No.92, Tekkupattu Village and land belongs to one Muthuachari vagaiyara and thereafter it passes through the lands in S.No.93/5 which belongs to the 2nd defendant. The cart track passes through the land in S.No.93/6 and it belongs to the 1st defendant and ends in the lands of the plaintiffs. 6. The plaintiffs and the defendants are in enmical terms. The defendants are creating trouble to the plaintiffs and restraining the plaintiffs 3/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011from using the cart track. The plaintiffs have got a right of easements to use the cart track way and the said easementary right is easement of necessity. Hence the suit was filed for declaration of easementary right in the suit cart track and for permanent injunction. Schedule of property details:''tl Mw;fhL mk;ngj;fhh; khtl;lk; thzpak;gho tl;lk; bjf;Fg;gl;L fpuhkj;jpy; f/rh/93-7 bek;gh; e";ir Vf;fh; 3/38 jPh;it U:gha; 4/63 ,jpy; jhd brhj;Jf;F brf;Fge;jp tptuk; ghyKj;J ke;jphp epyj;jpw;F bjw;F. ehd; epWj;jpf; bfhz;L ,Uf;Fk; epyj;Jf;F fpHf;F. tPug;g ke;jphp epyj;Jf;F tlf;F fz;lk;khs; epyj;jpw;Fk; fe;jrhkp epyj;Jf;Fk; nkw;F ,jd; kj;jpapy; V/1/54 f;F jPh;it 2/06 ,Jt[k; ,jw;F ghj;jpag;gl;lJ/ ehd; epWj;jp bfhz;oUf;Fk; epyj;jpy; cs;s fpykhd brl; fpzW 1y; miu tupir g{uh rfyj;jpYk; ghj;jpaKk; fpzw;wpy; mUfhikapy epyj;jpy; tlg[wkhf jz;zPh; bfhz;LnghFk; fhy;tha; ghj;jpaKk; khK:y; tHp ghj;jpaKk; Mfpa ,itjhd; jhd brhj;Jf;F rk;ge;jg;gl;lJ/''7. Contending contra, it has been averred by the defendants that in fact oral partition was effected in the year 1963 itself among one Bala 4/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011Muthumandiri and his sons namely T.B.Ramasami Pillai and the defendants herein. It is true that the respective parties have been in possession and enjoyment of their respective shares without any let or hindrance. It is false that in the said partition, it was mutually agreed by the defendants and the said Ramasamy Pillai each one of them has a right of way, channel right, right to pumpset shed to take water as alleged in the plaint. It is also false to allege that these rights were enjoyed from the date of partition by the defendants and T.B.Ramasamy Pillai jointly. The defendants are not aware of the gift deed and mortgage deed executed by T.B.Ramasamy Pillai. The defendants never obstructed the plaintiffs from using the alleged cart track. The plaintiffs' suit is speculative. There is no cart track in the lands of the defendants. There has been a foot path from the avaranguppam road to reach the lands, pumpset shed and the house of the plaintiffs. The 1st defendant's land is 4 feet lower level from the alleged cart track. The alleged cart track, there is no scope or chance for using the land as cart track.8. Based on the rival pleadings, the trial Court framed the following issues:1) Whether the suit is bad for non-joinder of necessary parties?2) Whether the contention of the defendants that the partition did 5/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011not take place in the year 1968 is correct or not?3) Whether the plaintiffs are entitled for the easementary right and for permanent injunction?4) Whether the contention of the plaintiffs that for the past 25 years, suit cart track has been in use is correct or not?5) To what other relieves the plaintiffs are entitled to?9. At trial, to substantiate the claim of the plaintiffs, three witnesses were examined and three documents were marked. On the defendants side, 1st defendant alone has been examined and no document is marked. Ex.C1 and Ex.C2 are the report and rough sketch of the Advocate Commissioner.10. The learned counsel for the appellants/defendants would strenuously argue that the width of the path way is not given in the plaint schedule and there is no cart track as such in use as alleged by the plaintiffs herein. He would further contend that there is no cart track at all in the eastern side of the defendants' land and they are cultivable lands. The recitals in Ex.A1 / Settlement Deed dated 04.05.1977 was misread by the trial Court. The trial Court relied upon the Commissioner’s report and the evidence of interested witnesses are totally incorrect. The evidence of 6/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011DW1 admitting the existence of path way is also miconceived by the trial Court.11. Per contra, the learned counsel for the respondents/plaintiffs would vehemently contend that the said easement was being enjoyed by the father of the 1st plaintiff, through gift deed dated 04.05.1977. It is the further argued that in fact, the said path way right was being enjoyed by the father of the 2nd plaintiff is evidenced from the details found in mortgage deed dated 20.04.1971 which was executed by T.B.Ramasami Pillai. Therefore, for the past 24 years, the plaintiffs' predecessor in title and thereafter, the plaintiffs have been enjoying the rights of cart track for the past 17 years. He would also contend that apart from the oral and documentary evidence, the Advocate Commissioner has also in clear terms acknowledged the existence of cart track as given in the schedule of properties in the plaint. More over objections to the Advocate Commissioner’s report was not filed by the defendants, would go to show that the defendants have acknowledged the contents of the report of the Advocate Commissioner. Without the path way right, it is not possible for the plaintiffs to enjoy their lands which is situated to the south of the defendants property. 7/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 201112. From a careful perusal of both sides pleadings, evidence, it is made clear that the defendants 1 and 2 are paternal uncle of the 2nd plaintiff herein. The suit property is admittedly gifted to the deceased 1st plaintiff and the 2nd plaintiff herein by the father of the 2nd plaintiff T.B.Ramasami Pillai, which is not in dispute.13. As regards partition, the plaintiffs' case is that oral partition took place in the year 1968 and the said details were refuted by the defendants and it was stated that oral partition took place in the year 1963 itself.14. Ex.A1 is the gift deed dated 04.05.1977 executed by T.B.Ramasami Pillai in favour of his son-in-law (1st plaintiff and his daughter, Ranjithammal, 2nd plaintiff). Ex.A2 dated 20.04.1971 is the registered mortgage deed executed by T.B.Ramasami Pillai in favour of one Ammakannammal in connection with the suit property. Ex.A3 dated 03.06.1998 is a copy of the sale deed executed by Subbarayan @ Subramani in favour of Sakunthala. 15. That apart, PW1-Ranjithammal has spoken in line with the plaint details. PW2-Shivaji, who is the resident of Thehkupattu Village, has spoken about the presence of pathway which starts from Puthukannu - 8/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011Avaranguppam road and ends in the plaintiffs land. PW2 would in particular state that in order to reach the plaintiffs lands, there is no alternate path way except the suit path way. From the cross-examination of PW2, it has been evident that he owns lands next to the lands of the 1st defendant Rajagopal. Therefore, he is suitable person to speak about the persons and usage of the suit pathway.16. A similar witness namely PW3-Natarajan has also given meaningful evidence which would further strengthen the case of the plaintiffs in respect of the persons and usage of suit path way. He would also state that he owns lands in S.No.87/2 in Thekkupattu Village. During the cross-examination of PW3, he would depose that the path way passes through the lands of Muthu Achari, Vijayan and Rajagopal. PW2 and PW3 have uniformly spoken about the persons and usage of suit path way. They have extensively spoken about the lie and location of the property of plaintiffs, defendants and other persons near the pathway.17. Ex.A2 is the copy of the registered mortgage deed dated 20.04.1971 executed by T.B.Ramasami Pillai (Father of the 2nd plaintiff herein) in favour of Smt. Ammakannammal in respect of S.No.103/5. As per the rough sketch, enclosed alongwith Advocate Commissioner report, 9/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011S.No.103 is situate to the north-west of Puthukannu Road. Whereas, the suit Survey number is 93/7. Ex.A1 is the settlement deed dated 04.05.1977 executed by T.B.Ramasami Pillai in favour of his daughter Ranjithammal (2nd plaintiff) and his son-in-law/2nd plaintiff's husband Rajadurai and the suit property is the property settled through Ex.A1. It is relevant to note that in Ex.A1, it has been mentioned that ''… fpzw;wpd; mUfhikapy epyj;jpy; tlg[wkhf jz;zPh; bfhz;LnghFk; fhy;tha; ghj;jpaKk; khK:y; tHp ghj;jpaKk; Mfpa ,itfs; kl;Lk; jhd; jhd brhj;Jf;F rk;ge;jg;gl;lJ/ …''. It is evidenced that the said property came to the hands of T.B.Ramasami Pillai through partition.18. Ex.A3 is the copy of the sale deed dated 03.06.1998 executed by Subarayan@Subramani and Selvaraj, sons of Muthusamy Achari in favour of Sagunthala Vijayan. The sale is in respect of S.No.92/10 (Thekkupattu Village), 0.38 cents. As per sketch enclosed with the Advocate Commissioner's report, S.No.92/10 of Thekkupattu Village situate to the south of puthukannu road. Wherein, the 1st defendant/DW1 has stated in the said document and he has also admitted the said fact during his cross-examination.10/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 201119. It appears that twice the Advocate Commissioner visited the property and filed his report along with rough plan.20. It is relevant to cullout the portion of the Advocate Commissioner's report: ''khjphp tiuglj;jpy; Mthu';Fg;gj;jpypUe;J g[j;Jf;fz; nehf;fp bry;Yk; rhiyia bjspthf fhl;oa[s;nsd;/ ,e;j rhiyf;F bjd;g[wkhf thjpfs; kw;Wk; gpujpthjpfspd; epy';fs; mike;Js;sd/ Kjypy; rhiyia fle;J bjd;g[wk; epyj;ij nehf;fp bry;Yk;nghJ Rkhh; 8 mo mfyg;ghij bry;fpwJ/ ,e;j ghijia rptg;g[ tz;zkpl;L khjphp tiuglj;jpy; fhl;oa[s;nsd;/ ,e;j ghij Kjypy; Kj;jhr;rhhp vd;gthpd; epyj;jpypUe;J Muk;gkhfp gpd;g[ gpujpthjpfspd; epyj;jpd; tHpahf bjhlh;e;J khjphp tiuglj;jpwy; Fwpg;gpl;Ls;s 1 2 vd;w rh;nt fw;fspd; tHpahf nkw;F g[wk; nehf;fp ePz;L bry;tij fz;nld;/ Mdhy; fpHf;F nkw;fhf bry;Yk; ,g;ghij Rkhh; mfyk; 6 mo ,Uf;fyhk;/ ,jida[k; khjphp tiuglj;jpy; rptg;g[ tz;zj;jpy; Fwpj;Js;nsd;/ thjpfspd; epyk; gpujpthjpfspd; epy';fistpl Rkhh; 1 mo nkl;oy; caukhf mike;Js;sJ/ ,e;j½ 11/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011epy';fspd; tHpahf bry;Yk; ghijapd; ePsj;ij msf;f Kw;fl;lnghJ gpujpthjpfs; vd;id msf;ftplhky; jLj;J vdJ gzpapid ghjpapnyna epWj;jptpl;ldh;/''21. A careful perusal of Ex.C1 Report, it appears that he did not complete his work and again he visited the suit property. He had visited the suit property for the first time on 22.11.1994, thereafter, on 07.03.1995.22. The relevant portion in the 2nd report of the Advocate Commissioner is extracted hereunder:''…. rh;nt vz;/92/10 vd;W tiuglj;jpy; Fwpf;fg;gl;Ls;s epyk; Kj;jhr;rhhp vd;gtUf;F ghj;jpag;gl;Ls;sjhFk;/ ,J thdk; ghh;j;j g{kpahFk;/ mLj;J rh;nt vz;/92/11 vd;w epyk; tp$ad; mjhtJ 2k; gpujpthjpf;F ghj;jpag;gl;l epykhFk;/ ,jid mLj;J rh;nt vz;/93/1A, 93/5 Mfpa epy';fs; gpujpthjpfs; ,UtUf;Fk; ghj;jpag;gl;l epy';fshFk;/////''23. In connection with the suit property namely path way, he has mentioned about the properties which is situate to the west of the pathway and the survey numbers and the owners details, width and length of the 12/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011pathway. His report reads that width of the north-south pathway is 8 feet, and width of east-west pathway is 6 feet. In the north-south pathway, he has mentioned that to a length 36 metres, the pathway is obstructed.24. On the side of the plaintiffs, the 2nd plaintiff has examined herself as PW1. To support the case of the plaintiffs PW2 one Sivaji and PW3 one Natarajan who are holding lands in and around the suit property have been examined and they have also given evidence to the effect that the suit pathway has been in use for more than 45 years. 25. The object behind the appointment of Advocate Commissioner includes duty to the peculiar nature of a particular case. It is pertinent to note that the defence of the defendants is that the plaintiffs have got right of easement to use the cart track is false. From a careful perusal of the entire examination of DW1, it appears that he is aware of partition of the lands and enjoyment of the lands by the respective parties, lie and location of the land and survey numbers and the Advocate Commissioner's report details etc. But, still notwithstanding the fact that he new the entire details, he did not choose to file objection to the Advocate Commissioner's report.26. In consideration of both sides oral evidence, plaintiffs' side 13/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011documentary evidence, and Advocate Commissioner's report with rough plan, surveyor plan, the plaintiffs had very effectively established their case and the trial Court has rightly allowed the suit as prayed for and the same has been confirmed by the First Appellate Court also in A.S.No.18 of 2009. This Court does not find any good reason to upset the finding of the First Appellate Court. No substantial questions of law arises for consideration. 27. In view of the aforestated observations and discussions, this Second Appeal stands dismissed. Sequel to this, the judgment and decree dated 25.02.2011 passed by the First Appellate Court stands confirmed. There is no order as to costs. 24.04.2025Index : Yes/No Speaking / Non-speaking orderssnTo1. The Sub-Court, Vaniyambadi.2. The Principal District Munsif Court, Vaniyambadi, Vellore District.3. The Section Officer, V.R.Section, High Court of Madras, Chennai.14/15 https://www.mhc.tn.gov.in/judis S.A.No.719 of 2011R.KALAIMATHI, J.,ssnS.A.No.719 of 201124.04.202515/15